Labor: "Who is GINA, and what does she have to do with your Facebook page?”

Now, more than ever, employers are dealing with Facebook and other social media use in the workplace. Social media-related discrimination claims by employees are on the rise and the types of cases are anything but ordinary. These are three of lesser-known laws that can be traps for unwary employers in the world of social networking.

Genetic Information Nondiscrimination Act of 2008 (GINA). “Her father has cancer—I saw it on her family’s website.” The number of employers using social media as a recruiting tool is increasing every year. However, reviewing social media sites may reveal an applicant’s genetic information, including family medical history. This raises two issues for employers. First, GINA contains restrictions regarding an employer’s right to review such information. Although there is an exception for genetic information that is “publicly available,” it is still not clear that social media falls within this exception. Second, when an employer fails to hire an applicant who has a posting that reveals family medical history, there is risk of a discrimination lawsuit under GINA. The individual could claim that the failure to hire is based on a fear about the applicant’s future ability to work based upon genetic background. As with any discrimination lawsuit, employers will need to articulate legitimate business reasons that support the decision to not hire the applicant in order to defend a GINA claim.

National Labor Relations Act (NLRA): “She called her supervisor a what?” Even non-unionized workplaces need to remember that the NLRA applies to their employees too. The NLRA allows employees the right to engage in protected concerted activity without fear of retaliation. Workplace complaints to other co-workers about terms and conditions of employment can fall into the category of “concerted activity.” However, most employers are not tolerant of concerted activity that consists of disparaging comments to co-workers on Facebook (or anywhere else online) about an employee’s supervisor or workplace in general. Over the last few years, the NLRB has launched a campaign against employers who have disciplined employees for violating social media policies that ban such behavior. The NLRB believes that such policies go too far and suppress workers’ NLRA rights. Employers are well-advised to narrowly draft social media policies so as not to chill an employee’s ability to voice legitimate workplace complaints. Further, before disciplining an employee for something he or she posted online, employers should consider whether the NLRA could be implicated.

Lawful Consumable Products or Activities Laws: “We cannot possibly hire him—look at that picture of him smoking a cigarette while doing a keg stand!” While the company president may not be excited about hiring someone who posted pictures of himself downing multiple shots of tequila during spring break in Florida, employers need to think twice before tossing aside an applicant for this reason alone. Several states have laws that protect applicants/employees from discrimination on the basis of off-duty lawful activities, e.g., consumption of alcohol and tobacco. In such states, employers should carefully document legitimate business reasons for the refusal to hire. With respect to current employees, because sites like Facebook lead to greater knowledge of employees’ personal activities, management should be cautioned against “friending” subordinates. In the event of any adverse employment action, it is better if management has no knowledge of the employee’s off-duty conduct. That way, the employee cannot later allege that his or her off-duty conduct unlawfully formed the basis for the decision.

Shareholder

Sara Ackermann

Sara Ackermann is a shareholder with Wausau, Wisconsin-based Ruder Ware, where she has substantial experience advising and representing clients in the...